Kibe v. The State Of Ga.

• Decision Date: 30 September 1884
• Citation: 73 Ga. 620
• Parties: Kibe. vs. The State of Georgia.
• Court: Georgia Supreme Court

73 Ga. 620

Kibe. vs. The State of Georgia.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1884.

Evidence. Criminal Law. Jury and Jurors. Practice in Supreme Court. Presumptions. Res gestae. Newly Discovered Evidence. Before Judge Branham. Polk Su perior Court. February Adjourned Term, 1884.

In this case, the charge of the court and the decision sufficiently report the points made. The charge was as follows:

" Gentlemen of the Jury—Under our Code, the punishment of a person convicted of murder shall be death, but may be confinement in the penitentiary for life in the following cases: If the jury trying the case shall so recommend, or if the conviction is founded solely on circumstantial testimony, the presiding judge may sentence to confinement in the penitentiary for life. In the former case, it is not discretionary with the judge; in the latter, it is. If you should find the defendant guilty generally under the indictment, it would subject him to capital punishment. If you should find the defendant guilty, and add to your verdict, 'and we recommend that the defendant be imprisoned in the penitentiary for life, ' it would be obligatory on the court. I would be obliged to conform to your recommendation, and could not sentence the defendant to capital punishment.

"You are the judges of the law and facts. You take the law from the court and the facts from the witnesses, apply one to the other, and weigh them, and make up a general verdict accordingly.

"In all criminal cases, the defendant has the right to make his statement to the jury, not on oath; and you are authorized to give to it, or any part of it, just such force as you see proper. You may believe it in part, you may reject it in part; you may believe it altogether in preference to the sworn testimony in the case, or you may reject it altogether. The language of the law is that you may do either one or the other of those things; not that you must do it. You are to give to it just such force as you see proper to give it, or as you see proper to give any part of it.

"In all criminal cases, the defendant's guilt must be established beyond a reasonable doubt. The doubt must be pertinent to the matter in issue. It must arise out of the evidence, or for the want of sufficient evidence. Juries, in their judgment in criminal cases, occupy the same position as other searchers after such, with but one excep" tion: the presumption is in favor of innocence, and the guilt of the defendant must not be doubtful; but the rules of belief and the grounds of confidence are the same as in other cases, and the principles of common sense are just as controlling as in other cases. If, after you have examined all the evidence in this case and the statement of the defendant, your minds are unsatisfied, unsettled, wavering, and you cannot, as honest men, viewing this transaction as you do any other ordinary transaction, come to a conclusion, beyond a reasonable doubt, that the defendant is guilty, you ought to acquit him; but if the evidence shows, beyond a reasonable doubt, that the defendant is guilty, it is your duty to convict him.

"In so far as the guilt of the defendant depends on circumstantial evidence alone, the rule is that each separate fact or link which goes to make up the chain of circumstances from which the deduction of guilt is sought to be drawn must be clearly proven, and a fact not clearly proven should not be considered as a part of the chain of circumstances, but should be rejected by the jury; and the circumstances proven must not only be consistent with the defendant's guilt, but they must exclude every other reasonable hypothesis than that of the defendant's guilt.

"Now if any one or more circumstances relied on by the state are not clearly proven, and for this reason you reject one or more of the circumstances relied on, then you will inquire whether the remaining circumstances proven, if they are clearly proven, are consistent with the defendant's guilt, and inconsistent with any other reasonable hypothesis than that of the defendant's guilt. All essential facts and circumstances necessary to show the commission of the crime, and to connect the defendant therewith as the party committing the act, must be proven.

"If a witness knowing' y swears to a falsehood in one particular, he is unworthy of belief in any particular. If he swears to a falsehood by mistake, it goes to his credit.

"In case there is a conflict of testimony, if you can reconcile it upon any reasonable theory, so as to make all the witnesses speak the truth and impute perjury to no one, it is your duty to do so. But if you cannot so reconcile the testimony, you are to believe that which is the most reasonable and credible to you. In reaching your conclusion, you will not view detached portions of the testimony alone, but look at the whole of it, and consider it all; consider the testimony of all the witnesses sworn in the case; the state of feeling of the witnesses; the relationship, or the absence of relationship, of each of the witnesses to any of the parties to or connected with the transaction; the interest or want of interest on the part of any witness sworn, if any such things exist; the manner of the witnesses on the stand; the character of each witness and his opportunity to know the facts about which he testifies. And you will also consider the statement of the defendant, the dying declarations of the deceased, and his statements made immediately after it is said he was shot, under the rule which I shall hereafter give you in charge.

'' A witness may be impeached by disproving the facts testified to by the witness, or by proof of contradictory statements previously made by the witness as to matters relevant to his or her testimony and to the case, or by evidence, or to the general bad character of the witness.

"An impeached witness may be sustained by proof of general good character, the effect of the evidence to be determined by the jury. The jury may consider the evidence of an impeached witness, especially if it is in harmony with the truth and corroborated by other testimony; and although a witness may be impeached by other witnesses, and may not be afterwards corroborated, yet it is a question for the jury to determine whether the impeachment of the witness has been successful, and whether the witness is to De believed. As to how far the credit of an impeached witness may be restored depends much upon the nature as well as the extent of the corroborating testimony, and whether they are corroborated as to the main rather than as to the immaterial facts. You are the exclusive judges of the weight of the evidence and the credibility of the witnesses sworn on the trial. And you are authorized to take into consideration the testimony of all the witnesses pro and con as to the general character of any witness sworn in the case, in connection with all the evidence before you, in deciding whether such witness has been impeached or sustained, and what weight or credit you will give to his or her testimony. And you are authorized to take into consideration the testimony of all the witnesses pro and con as to the general character of the deceased, Dick Ratchford, in connection with all the evidence in the case, in deciding what credit and weight you will give to his dying declarations, and to any statements he may have made immediately after he was shot. The same rules which apply to the impeachmentof witnesses, to sustaining and corroborating them, apply with equal force to the deceased, Dick Ratchford\'s dying declarations and statements; for his dying declarations and statements, admitted in evidence as a part of the res gestae, stand upon the same plane that they would occupy if they had been sworn to in open court. You are the exclusive judges of the weight and credit of Ratchford\'s dying declarations, and of any statements he may have made immediately after he was shot.

"Some testimony has been admitted in reference to what the witness, Mrs. Wood, is alleged to have said, on the commitment trial, of the defendant, about her husband's coming to Cedar town on the day of the homicide. What Mrs. Wood said in relation to this isolated fact was not material to the issue, unless the movement of her husband on that day was, in some way or other, connected with the crime; and a contradictory statement as to that matter alone would not of itself be sufficient to impeach her, unless the movement of her husband was on that day, in some way or other, connected with the crime.

"Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, are admissible in evidence as part of the res gestae.

"What the deceased said, if anything, immediately after he was shot, if it sprung out of the main transaction and elucidates it, was voluntary and spontaneous, and made at a time so nearly connected there, with, and under such circumstances as to be free from all suspicion of device or afterthought, is competent evidence, and shall be considered by the jury, in connection with all the other evidence in the case, in making up their verdict. If what the deceased said, if he said anything, was not said immediately after he was shot, or at a time so nearly connected therewith; if it was not voluntary and spontaneous, and made under such circumstances as to be free from all suspicion of device or afterthought, it would not be competent evidence, and it should not be...